Citation Nr: 0723232
Decision Date: 07/27/07 Archive Date: 08/06/07
DOCKET NO. 04-13 600 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for a skin disorder,
claimed as due to herbicide exposure.
2. Entitlement to service connection for arthritis, claimed
as due to herbicide exposure.
3. Entitlement to service connection for nerve damage of the
feet and legs, claimed as due to herbicide exposure.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. J. Alibrando, Counsel
INTRODUCTION
The veteran served on active duty from June 1965 to September
1972.
The present matters come before the Board of Veterans'
Appeals (Board) on appeal from a June 2003 rating decision in
which the RO denied the veteran's claims of service
connection for arthritis, a skin condition and nerve damage
to the feet and legs, each claimed as due to herbicide
exposure. In July 2003, the veteran filed a notice of
disagreement (NOD). A statement of the case (SOC) was issued
in February 2004, and the veteran filed a substantive appeal
(via a VA Form 9, Appeal to the Board of Veterans' Appeals)
in April 2004.
In December 2004, March 2006 and December 2006, the Board
remanded these matters to the RO (via the Appeals Management
Center (AMC), in Washington, DC) for further action, to
include additional development of the evidence and scheduling
the veteran for a requested hearing before the Board. After
accomplishing the requested actions, the RO/AMC continued the
denial of the claims on appeal (as reflected in November 2005
and September 2006 supplemental SOC's (SSOC)) and returned
these matters to the Board for further appellate
consideration.
The Board notes that the veteran failed to appear for a
hearing before a Veterans Law Judge at the RO, scheduled in
January 2007.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate each claim on appeal has been accomplished.
2. Because the appellant served in the Republic of Vietnam
during the Vietnam era, his exposure to herbicides to include
Agent Orange is presumed.
3. The only medical opinion on the question of a medical
relationship between the claimed arthritis, skin condition
and nerve damage of the feet and leg exposure to Agent Orange
during service in Vietnam weighs against the claim.
CONCLUSIONS OF LAW
1. The criteria for service connection for a skin condition,
claimed as due to herbicide exposure, are not met. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2006).
2. The criteria for service connection for arthritis,
claimed as due to herbicide exposure, are not met. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2006).
3. The criteria for service connection for nerve damage of
the feet and legs, claimed as due to herbicide exposure, are
not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307,
3.309 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002 and Supp. 2006) include enhanced duties to notify
and assist claimants for VA benefits. VA regulations
implementing the VCAA have been codified, as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006).
Notice requirements under the VCAA essentially require VA to
notify a claimant of the evidence that is necessary to
substantiate the claim(s), as well as the evidence that VA
will attempt to obtain and which evidence he or she is
responsible for providing. See, e.g., Quartuccio v.
Principi, 16 Vet. App. 183 (2002)(addressing the duties
imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).
As delineated in Pelegrini v. Principi, 18 Vet. App. 112
(2004), after a substantially complete application for
benefits is received, proper VCAA notice must inform the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim(s); (2) that VA
will seek to provide; (3) that the claimant is expected to
provide; and (4) must ask the claimant to provide any
evidence in her or his possession that pertains to the
claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).
VA's notice requirements apply to all five elements of a
service connection claim: veteran status, existence of a
disability, a connection between the veteran's service and
the disability, degree of disability, and effective date of
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).
VCAA-compliant notice must be provided to a claimant before
the initial unfavorable decision on a claim for VA benefits
by the agency of original jurisdiction (in this case, the RO,
to include via the AMC). Id; see also Pelegrini, 18 Vet.
App. at 112. See also Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.
2003).However, the VCAA notice requirements may, nonetheless,
be satisfied if any errors in the timing or content of such
notice are not prejudicial to the claimant. Id.
In this appeal, a My 2003 pre-rating notice letter, and
October 2003, March 2005 and March 2006 post-rating letters
the RO provided notice to the appellant regarding what
information and evidence was needed to substantiate the
claims for service connection, as well as what information
and evidence must be submitted by the appellant, what
information and evidence would be obtained by VA, and the
need for the appellant to advise VA of and to submit any
further evidence that is relevant to the claims. Further,
the March 2005 letter specified that the veteran should send
in medical reports he has, and the March 2006 letter
requested that he provide evidence in his possession. After
issuance of each notice described above, and opportunity for
the appellant to respond, the November 2005 and September
2006 SSOCs reflect readjudication of the claims. Hence, the
appellant is not shown to be prejudiced by the timing of
VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet.
App. 537, 543 (2007). See also Prickett v. Nicholson, 20
Vet. App. 370, 376 (2006) (the issuance of a fully compliant
VCAA notification followed by readjudication of the claim,
such as in a SOC or supplemental SOC (SSOC), is sufficient to
cure a timing defect).
The Board notes that the September 2006 SSOC informed the
appellant how disability ratings and effective dates are
assigned, and the type of evidence that impacts those
determinations, consistent with Dingess/Hartman. However,
the Board finds that the appellant is not prejudiced by the
timing or form such notice. Because the Board's decision
herein denies the claims for service connection now under
consideration, no disability rating or effective date is
being, or is to be, assigned; accordingly, there is no
possibility of prejudice to the veteran under the
requirements of Dingess/Hartman.
The record also reflects that VA has made reasonable efforts
to obtain or to assist in obtaining all relevant records
pertinent to the matters herein decided. Pertinent evidence
associated with the claims file consists of the veteran's
service medical records, service personnel records, post-
service private medical records, as well as an October 2005
report of VA examination. Also of record are various
statements by the appellant and his representative
In summary, the duties imposed by the VCAA have been
considered and satisfied. Through various notices of the RO
(to include via the AMC), the appellant has been notified and
made aware of the evidence needed to substantiate these
claims, the avenues through which he might obtain such
evidence, and the allocation of responsibilities between
himself and VA in obtaining such evidence. There is no
additional notice that should be provided, nor is there any
indication that there is additional existing evidence to
obtain or development required to create any additional
evidence to be considered in connection with either claim.
Consequently, any error in the sequence of events or content
of the notice is not shown to prejudice the appellant or to
have any effect on the appeal. Any such error is deemed
harmless and does not preclude appellate consideration of the
matters herein decided, at this juncture. See Mayfield, 20
Vet. App. at 543 (rejecting the argument that the Board lacks
authority to consider harmless error and affirming that the
provision of adequate notice followed by a readjudication
"cures" any timing problem associated with inadequate
notice or the lack of notice prior to an initial
adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d
534, 549 (Fed. Cir. 1998).
II. Analysis
Under the applicable criteria, service connection may be
granted for a disability resulting from disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38
C.F.R. § 3.303. Such a determination requires a finding of
current disability that is related to an injury or disease in
service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau
v. Derwinski, 2 Vet. App. 141, 143 (1992). Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the period beginning
on January 9, 1962, and ending on May 7, 1975 shall be
presumed to have been exposed during such service to an
herbicide agent (to include Agent Orange), unless there is
affirmative evidence to establish that the veteran was not
exposed to any such agent during that service. See 38 C.F.R.
§§ 3.307(a)(6)(iii); see also VAOPGCPREC 7-93.
If a veteran was exposed to a herbicide agent during active
service, the following diseases shall be service-connected if
the requirements of 38 C.F.R. § 3.307(a)(6) are met, even
though there is no record of such disease during service,
provided further that the rebuttable presumption provisions
of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or
other acneform diseases consistent with chloracne, Type 2
diabetes (also known as Type II or adult-onset diabetes
mellitus), Hodgkin's disease, multiple myeloma, non-Hodgkin's
lymphoma, acute and subacute peripheral neuropathy, porphyria
cutanea tarda, prostate cancer, respiratory cancers (cancer
of the lung, bronchus, larynx, or trachea) and soft-tissue
sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's
sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). VA has
determined that there is no positive association between
exposure to herbicides and any other condition for which it
has not specifically determined that a presumption of service
connection is warranted. See Notice, 59 Fed. Reg. 341-346
(1994); see also 61 Fed. Reg. 57586-57589 (1996).
Here, the Board finds that there is no basis for presumptive
service connection based on presumed herbicides exposure,
since none of the claimed conditions is among the enumerated
disabilities recognized by VA as being etiologically related
to herbicide exposure. On VA examinations in October 2005,
the pertinent diagnoses were degenerative joint disease of
the knees, status post left meniscectomy with residuals;
peripheral neuropathy/radiculopathy due to degenerative disc
disease and degenerative joint disease of the lumbosacral
spine; and prurigo nodularis. The remaining private
treatment records and records of the Social Security
administration did not include pertinent diagnosis of any
disability recognized as being etiologically related to
herbicide exposure.
Notwithstanding the presumptive provisions, service
connection for claimed residuals of exposure to herbicides
also may be established by showing that a disorder resulting
in disability is, in fact, causally linked to such exposure.
See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee
v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38
U.S.C.A. §§ 1113 and 1116, and 38 C.F.R. § 3.303. Here,
however, the record also does not present a medical basis for
finding that any disability for which service connection is
sought is medically related to any in-service herbicide
exposure.
The medical evidence of record includes private treatment
records from Carolina Specialty Care, dated from July 1998 to
February 2003; the records reflect diagnoses of bilateral
knee and neck osteoarthritis, herniated cervical disks C4-5,
and C5-6 and lumbago with radiculopathy to the left lower
extremity. The record also includes the records of the
Social Security Administration indicating that the veteran's
primary diagnoses are disorders of the back, discogenic and
degenerative. There is no evidence in those records of
treatment for a skin condition. There is also is no evidence
or opinion linking the current disabilities to exposure to
herbicides during service in Vietnam.
In this case, the only competent medical opinions of records
do not establish a nexus between appellant's claimed
arthritis, skin condition and nerve damage of the feet and
legs and presumed herbicide exposure therein.
On VA orthopedic examination in October 2005, the examiner
indicated that the claims file was reviewed. The veteran
reported pain, weakness and stiffness and a history of
degenerative joint disease of the knees. The diagnosis was
degenerative joint disease of the knees, status post left
meniscectomy with residuals. The examiner concluded that the
veteran has degenerative joint disease, and there was no
evidence that degenerative joint disease is cause by or
related to Agent Orange exposure.
On VA neurological examination in October 2005, the examiner
indicated that the claims file was reviewed. The veteran
reported a history of problems with his back with numbness
and tingling in his legs, which he reported began in 1995.
The examiner noted that the veteran had neurologic studies
done, which were documented in the claims file, and he was
found to have diffuse peripheral neuropathy involving both
lower extremities. It was indicated that he had a history of
degenerative disease in the lumbosacral spine and had
surgeries on the neck and lumbosacral spine. The examiner
indicated that the veteran's symptoms had been attributed to
the discogenic disease all of the time. The diagnosis was
peripheral neuropathy/radiculopathy due to degenerative disc
disease and degenerative joint disease of the lumbosacral
spine and that the etiology was from discogenic disease of
the lumbosacral spine.
On VA dermatologic examination in October 2005, the examiner
indicated that the claims file was reviewed and noted the
veteran's service in Vietnam. The veteran reported an skin
eruption on his both hands and arms, that had been constant
over the previous two years. The diagnosis was prurigo
nodularis. It was noted that the inciting events for prurigo
nodularis are all sometimes unidentifiable. It was noted
that the veteran reported that the lesions started
approximately two years earlier, which was nearly thirty
years after discharge in 1972. The examiner concluded that
it is less likely than not that the current skin lesions are
associated with his service in the military.
Here, the only medical nexus opinions weigh against each of
the claims, and neither the veteran nor his representative
has identified or even alluded to the existence of any
contrary medical opinion(s)-any that, in fact, support(s) a
relationship between the current skin disability,
degenerative joint disease and degenerative disc disease,
claimed as arthritis, and/or peripheral neuropathy of the
lower extremities, claimed as nerve damage, to in-service
exposure to herbicides.
In addition to the medical evidence addressed above, the
Board has considered the veteran's assertions in connection
with the claim on appeal. However, as a layman without
appropriate medical training and expertise, he is not
competent to render a probative opinion on a medical matter,
to include a question as to the etiology a current
disability. See Bostain v. West , 11 Vet. App. 124, 127
(1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a
layman is generally not capable of opining on matters
requiring medical knowledge). Hence, his assertions in this
regard have no probative value.
Under these circumstances, the claims for service connection
for a skin disorder, for arthritis and for nerve damage of
the feet and legs, each claimed as due to herbicide exposure,
must be denied. In reaching these conclusions, the Board has
considered the applicability of the benefit-of-the-doubt
doctrine. However, as the preponderance of the evidence is
against each claim, that doctrine is not applicable. See 38
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski,
1 Vet. App. 49, 53-56 (1990).
ORDER
Service connection for a skin disorder, claimed as due to
herbicide exposure, is denied.
Service connection for arthritis, claimed as due to herbicide
exposure, is denied.
Service connection for nerve damage of the feet and legs,
claimed as due to herbicide exposure, is denied.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs